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John C. Barrett v. Kerry M. Barrett

July 25, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-404-00.

Per curiam.


Submitted July 11, 2012

Before Judges Espinosa and Koblitz.

Both parties appeal from a post-judgment order of August 29, 2011, after a plenary hearing, denying Kerry's*fn1 application to relocate with their fourteen-year-old son to Kansas City, Missouri, more than doubling John's child support to $11,250 per month and eliminating his mid-week parenting time. The trial judge also ordered that if John sought a decrease in child support, Kerry could renew her application for relocation. After reviewing the record in light of the contentions advanced by both parties on appeal, we affirm.

The parties were married in 1994. Their son was born in 1997. A complaint for divorce was filed in 1999. In 2002, after a full testimonial hearing and prior to their divorce, the trial judge allowed Kerry to move back to New York City with their son over John's objection. At the same time, the judge set a schedule providing John parenting time six out of every fourteen days and five full weeks during the summer. The parties were divorced in 2003 after agreeing to child support of $5250 per month and term alimony for thirty-five months at $5000 per month. In 2007, after interviewing their son and conducting a plenary hearing, the trial judge denied John's application for a change in primary residential custody premised on Kerry's move from New York City to Chester, in Morris County. John maintained that he would not have objected had Kerry moved to Essex County. The judge noted in his 2007 opinion that, since the divorce filing in 1999, the parties had forty-two scheduled court appearances resulting in twenty-five court hearings. The same trial judge heard and decided all contested issues between the parties, including the 2011 order under appeal.

We will not disturb the trial judge's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Id. at 412.


John argues on appeal that the judge erred by more than doubling his child support obligation without a case information statement (CIS) from either party as required by Rule 5:5-4,*fn2 a showing of changed circumstances, any reference to the statutory criteria for setting child support, N.J.S.A. 2A:34-23(a), or a request by Kerry for such relief.

The trial judge explained his reasons for increasing support after noting that, although the son was now a teenager, child support had not been increased since 2002.*fn3 He stated that Kerry wanted to move to Kansas City in part for economic reasons. The standard of living was lower in Missouri and she and their son would have access to her father's and sister's country clubs there. He also noted that John wanted the child to remain in New Jersey and attend Montclair Kimberly Academy (MKA), offering to pay the tuition of $37,000 per year. Instead, the judge ordered the child to remain in New Jersey and continue to attend public high school, thereby saving John the cost of tuition. The trial judge noted that "[t]his increase [in child support] will allow [Kerry] to maintain a residence in New Jersey and is an integral part of the court's decision."

The parties are financially comfortable, as the judge noted in prior decisions. The trial judge incorporated into this decision his prior decision from 2002 allowing Kerry to move to New York, as well as his 2007 decision denying John's application for a change of custody. In 2007, the judge stated:

These are two well-educated, financially advantaged parents who care for their only child. They are both devoted to their son and he leads a magical life that is provided for him by both of these caring and loving parents.

In 2002, the parties sold the marital home for $1.9 million and each party realized approximately $500,000 from the proceeds. The equitable distribution set forth in the judgment of divorce (JOD), although not always explicit as to the values of the assets, revealed the significant net worth of the parties. In the JOD, the parties agreed to child support well above the guidelines maximum for one child*fn4 ...

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